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Oral evidence Taken before the Constitutional Affairs Committee on Tuesday 18 November 2003 Members present: Mr A J Beith, in the Chair __________ Examination of Witnesses Witnesses: PETER WILLIAMSON, President, and BARBARA CAHALANE, Strategy Policy Adviser (Director), the Law Society, MATTHIAS KELLY QC, Chairman, RICHARD DRABBLE QC, Chair, Working Party on Supreme Court, ELIZABETH GLOSTER QC, Chair, Working party on Judicial Appointments, the Bar Council, examined. Chairman: Good afternoon everyone and welcome to the Committee. We are very glad to have you with us today. Before we start I think there might be one or two interests we could usefully declare. Ross Cranston: I am a recorder and barrister. Mrs Cryer: I am Ann Cryer. I am a member of the Supplemental List of Bradford Magistrates. Keith Vaz: I am Keith Vaz. I have instructed Mr Drabble on a matter in the past and my wife served with Mr Williamson as a member of the council of the Law Society. Mr Clappison: I am a barrister but I do not practise. Q99 Keith Vaz: I would like to ask the Bar and the Law Society what the professions have done to promote diversity. Ms Gloster: I think there has been quite a lot of encouragement in relation to both women and ethnic minorities. The Bar itself and Chambers substantially encourage applications from a wide pool of applicants for pupillages. I am not talking now about judicial appointments because that is something slightly different, but certainly in relation to applicants for Chambers the Bar is very conscious indeed of the need to recruit the best people from the widest social and cultural backgrounds. Certainly in my experience over the last however many years - probably more than I care to mention - one has seen, as entrants to the profession, many more women and many more people from ethnic minorities and the message goes out from Chambers - certainly in the field that I practise in, which is the Commercial Bar - that we want the best people irrespective of gender, race or background. Q100 Keith Vaz: If you look at the Bar Council - and indeed if you look at the Law Society's Governing Council - how many black and Asian people sit on the Bar Council's Governing Body and how many of them are women? Ms Gloster: I do not know the answer to that because I am not a member of the Bar Council myself. I could not tell you, but maybe somebody can. Maybe the Chairman of the Bar can help you with that. Mr Drabble: Not many. Q101 Keith Vaz: How many? Mr Kelly: I am quite happy to supply the answer. Q102 Keith Vaz: I would be quite happy to have the answer. Ms Cahalane: I can answer for the Law Society. Twenty-four members of the Law Society's Council are women. That is a proportion that has increased substantially in recent years. I am going from memory but I think there are five members who are of an ethnic minority origin. Q103 Keith Vaz: Out of how many? Ms Cahalane: Out of a Council of one hundred. In terms of encouraging diversity, the solicitor's profession I think is the happy position where now some 16% of new admissions describe themselves as of an ethnic minority origin. However we have been monitoring what we call a cohort very carefully over the years and what we know is that nonetheless those people still suffer considerable progression and promotion barriers once they enter the profession. We have been working hard with city and with the profession in general to raise awareness of that. We also have a diversity access scheme which is designed to open up the profession to people from backgrounds who have not thought in terms of becoming a lawyer. We have run seminars with school children from various districts and backgrounds where it might not be part of their expectation. There is always more to be done. Mr Williamson: Could I add to that I think so far as women are concerned at the moment the figure is 60% of admissions coming into the profession and 40% men. That has changed considerably. Just to pick up a point Barbara made, our Council can, in fact, be 105 members including five lay members. We do not have a hundred other members at the moment because there are vacancies. Excluding the lay members it is just less than a hundred. Indeed, since I became a council member in 1992 the number of women and council members from ethnic minority backgrounds has improved substantially. The number of women has multiplied by three in that period. Ms Gloster: Can I give you some figures on the intake to the Bar? Certainly today it is a far more diverse profession than it has ever been before: 18% of our intake are from an ethnic minority background; 49% are women; 10.5% of the Bar overall are from an ethnic minority background and 30% overall are women. I am told that we hold our career fairs jointly with the solicitor's profession and those career fairs do encourage applicants from ethnic minority backgrounds and from women. Q104 Keith Vaz: When the Government announced the changes which led to this inquiry one of the points that the Lord Chancellor made was the fact that the judiciary had to change. Everyone supports diversity; I do not think anyone could turn round and say "We do not support diversity", but they also end up by saying that if you are appointed you are appointed on merit. Does the diversity principle undermine the merit principle? If it does not, are we saying that there are not sufficient people of merit amongst the black and Asian communities to actually serve as judicial appointments at this moment? Where are they all? Why have they not been appointed so far? Mr Williamson: I would say in answer to that that they have not been encouraged to apply or they have been discouraged from making applications because of the system for making applications for judicial appointment. It is not user friendly for people from ethnic minority backgrounds or, in many cases, from women who have had career breaks or people in those sort of circumstances and it has been Law Society policy for many years that we want to see a system that whilst not in any way compromises on the principle of merit - which I think we all agree is absolutely vital - it is more user friendly for people from ethnic minority backgrounds, disabled applicants, solicitors and women. Q105 Keith Vaz: As to the process, do you think that the process we currently have - which relies to a great extent on soundings - discriminates unfairly against people who happen to be black or Asian and against women? Mr Williamson: Yes. Ms Gloster: I would not agree with that at all. Q106 Keith Vaz: Let us take the "yes" first and then the "would not agrees". Who says, "yes, it does"? Ms Cahalane: The Law Society says, "Yes, it does". The difficulty we feel with the heavy reliance on soundings - particularly for the more senior appointments - is that you have to be known and visible to this group who are automatically consulted. It is more difficult for people who maybe are not in the traditional clubby networks. It is more difficult for people who do not have court-based practices to become known to that group. We feel that both the perception and the reality of that can be quite a discouragement to people. We hope very much that the new Judicial Appointments Commission would have a very specific charge of going out and helping to identify people who have the potential to demonstrate the right kind of merit; going out and helping to identify them and encourage them to put themselves forwards. However, they must apply in a much more modern application process and then merit becomes the overriding factor. The key to more diversity is more encouragement and helping people recognise that they can meet the criteria. Q107 Keith Vaz: Ms Gloster, you disagree with this. Ms Gloster: I disagree, certainly speaking from my own experience and Matthew Kelly will supplement that with some figures. At every level below the Court of Appeal application for judicial appointment is now by application, as I understand it. There is no sense in which the application forms are not user friendly. At every level there are ethnic minority and women applicants. The reason why the figures do not reflect the numbers of people there are at the Bar I think is historic and I think there is still a catch-up time which is being addressed. It is a question of time. Why are there not women in the House of Lords? Answer: because it has taken time for women to work through the system. Q108 Keith Vaz: The Lord Chancellor has just appointed the first woman Lord - it is the first time in history that it has been done - under the present system. It might be put to yourselves as professionals representing barristers and solicitors that you have failed to encourage black and Asian people and women to put themselves forward for these appointments. When they look at the Law Society they see a long running legal case on racial discrimination. When the look at the Bar Council they say they cannot even get pupillage they are black and that is the problem about becoming pupils in the current set up. How can you convince this Committee that you, as professional bodies, are taking this issue seriously, apart from the fine words on diversity which we can all repeat? Mr Kelly: I do not accept what you say. That may have been true at one time. The Bar now is far more diverse. I do not come from a background which could be said to be that which reflects the average intake to the Bar. It has changed enormously. We now have in place rigorous anti-discrimination policies. We work pro-actively to assist any applicant coming to the Bar who believes that they have a problem and we are sensitive as to how that might be dealt with. We do not expect them to come out shouting from the rooftops on that. We have effective rules against discrimination and one of the things that has happened is that where Chambers are required to pay for pupils and to see that as an investment, then what Chambers are looking for are the most able candidates. It is a matter of total indifference as to what their gender, social or economic background, colour of their skin is. What you are looking for is the people who will best repay the investment. If you look at that cohort that is going through - some of whom are already at silk, some of whom are ready to go onto the Bench - it is far, far more diverse. Elizabeth gave you the answers on that. It is not a matter for us as to who made the appointments in the past. We know it was government that made the appointments. That, hopefully, will all change in the future and it is a matter of regret to our profession that it has taken this length of time for a women to reach the highest court in the land. Mr Williamson: I agree with a lot that Matthew Kelly has said; it applies equally to the Law Society. We have an anti-discrimination rule which we are in the process of - if I may use the expression - beefing up with a view to enforcing it far more rigorously than we have in the past. We have outlined how the changes over the recent years in Council members both of women and of people from ethnic minority backgrounds, and we are determined to do all we can to encourage those people to make applications for judicial appointments and we are actively running seminars and such things to explain to them how they can do it and the best way to go about it. Ms Cahalane: We have been campaigning. We had a paper as early as 1990 called Broadening the Bench. We have been campaigning for a Judicial Appointments Commission and for changes to ameliorate the flaws as we see them in the current system. We have been campaigning for quite a long time on that and have worked with the former Lord Chancellor's Department and now the DCA on information evenings which are very much targeted towards women and people from ethnic minority backgrounds in the profession. Q109 Keith Vaz: Has the Cavendish case helped or hindered your campaign? Mr Williamson: I do not think it has helped, but if I may I would rather not get involved in that. Q110 Keith Vaz: Can you just say whether it has helped or hindered? Mr Williamson: It has not helped. Q111 Ross Cranston: I was going to say that Keith Vaz has identified a problem and you have spoken about some of the solutions such as going out and encouraging people. However, the law is not unusual. If you look at business or the newspapers, or even the House of Commons, there is this accretion of women and black and ethnic minority people as you proceed up the hierarchy. I think it is important to appreciate this is a society problem; I think you would probably agree with that. Mr Kelly: I think that is right. One of the things I would point is that for a number of years now we have been very active on this front with our equal opportunities department and equal opportunities officers. Before this we also had the Glidewell report which was specifically charged with looking into how you promote diversity in the judiciary. This was long before the DCA copped onto it. We were pushing it and that is what led, in the early part of this year, to a new momentum for reform. You will see it attached as one of the annexes to our response to the DCA report on judicial appointments. Q112 Mr Soley: Mr Williamson, in answer to my colleague Keith Vaz you said the explanation for under representation was a lack of being user friendly; you said it was not user friendly. Can you define what you mean by not user friendly and can you tell me what has been done or is being done to make it user friendly? Mr Williamson: I think it is a point which has already been referred to by other witnesses. It is that the reliance upon secret soundings has made it more difficult for people from ethnic minority backgrounds and for women, for example, to be known to the people who give views on the candidates. Therefore they feel at a disadvantage and that in itself stops them from applying. Q113 Mr Soley: You mean they are not user friendly in that very narrow sense. Mr Williamson: Yes, I do. Q114 Mr Soley: It is very specific. Mr Williamson: Yes. Ms Cahalane: Also candidates, even if they are not applying for an appointment at a level which attracts automatic consultation, have to nominate up to six what are called nominated referees. Again, if you have had a career break or have been out of practice or do not have a very high profile type of practice, often women can underestimate themselves and feel that they will not be able to nominate a sufficiently well-known group of six nominated referees. People from diverse backgrounds might feel that they cannot put the name of three judges down as six of their referees. It is their perception; they feel disadvantaged by some aspects of the system. Mr Kelly: Peter used the phrase "secret soundings"; I am afraid I do not go along with that. The people who are asked their opinion are always named, they are on the back of all the material that goes with it. In common with many other consultation processes - for example job referees - it works well and to encourage frankness we have confidentiality. I do not see what is particularly secret about it when every person who is consulted is actually named and everyone knows that they are there. I therefore have slight problems with those two words "secret soundings". Q115 Chairman: One of the proposals that has gained some currency to address the lack of diversity in the judiciary - and it relates of course to the state of progress through the profession of minority groups and women - is the idea of entering the judiciary at a younger age. I would be interested in the views of the two bodies on the implications of this and whether it would achieve the desired purpose or is undesirable on other grounds? Ms Gloster: I think it is very important that the principle of merit is upheld. I do not think that that precludes the possibility of judicial experience at an earlier age. Today the system, as it presently works, enables people to sit as recorders or to apply to sit as recorders or become appointed as recorders at a relatively young age. I am talking about mid-30's to late 30's, depending on the ability of the candidate. Likewise, there is an ability to sit as a part-time district judge or as a magistrate. If you look at the paper that we produced on appointments and the Judicial Appointments Commission, in paragraph 69 we propose a system for encouraging diversity and applications in particular by people who have taken career breaks to bring up children (mainly, I presume, women) which would give a springboard back into the profession by putting them on a special list as part-time recorders or district judges so that they could see, having brought up a family, whether they wanted to go back into the judging pool from which they could then be taken for permanent appointment. That is the sort of procedure that my working party has recommended. At the moment it is fair to say there is an untapped resource. Q116 Chairman: And on the Law Society's side? Mr Williamson: We agree with that. The only other point I would make is that I think we very strongly believe that people who apply for judicial appointments should have a significant amount of experience in practice. One is not advocating a judicial career from the very beginning. Earlier entry is to be encouraged provided that the applicants have got the necessary experience to be able to show that they are getting their appointment on merit. Q117 Chairman: So there is not a general anxiety that lowering by five years, for example, the average age of appointment to each level might take place. That would not cause you anxiety as long as the merit principle was being maintained. Mr Williamson: Exactly. Mr Kelly: That is right because there is a need for people to have experience. A judge is likely to develop most independence when he or she has had experience of dealing with difficult clients, difficult tribunals. Factual situations put a tremendous amount of pressure on people to go in a particular way and they withstood that. Those are the sort of qualities that are acquired over years of experience in practice. The concern is that if you go back too far you do not actually have people who have enough experience. The short answer to your point is that lowering does not cause a problem. Ms Gloster: But a career judiciary would, in my opinion, undermine the principles of merit and independence. Q118 Mr Clappison: I declare an interest as a member of the Bar. Could I ask the representatives from the Bar Council, in the light of what has been said about experience and people rising to the necessary level of merit and the importance of encouraging people to forward at the bottom end of the profession, if you could say a little about what the Bar Council has done to facilitate and encourage able people from the ethnic minorities to apply for pupillages and obtain pupillages. Mr Kelly: We have embarked on a course of visiting new universities; we are specifically targeting those. In the past there may well have been a tendency to go to more established universities. That is something to which we have devoted a great deal of energy and it is something which, as Chairman of the Bar, I have spent a considerable amount of time encouraging the Inns of Court to co-ordinate their efforts and enhance the efforts they are making. At present we have four Inns who are working somewhat separately; we want them to work together to target this and pursue the work that has already been done. We engage in career fairs to address the concerns and fears that people have about a career in the law when they know nothing about it and to show them that it is accessible to them. Those are efforts which we intend to continue with and to accelerate. Q119 Mr Clappison: In the light of your own experience at the Bar, are you able to say anything about how the number of people coming from ethnic minorities into pupillage and into Chambers compares now with the situation 20 years ago? Ms Gloster: It is entirely different. I can speak from my own experience on this. When I came to the Bar in 1971 I was told that I was not going to be given a seat in Chambers because I was a woman. Today that sort of thing, certainly in my neck of the woods - which is the commercial neck of the woods - is simply unheard of. Everything is advertised. There is a handbook. Anybody can apply. We select on merit. Our Chambers reflects - perhaps more than others - a large ethnic and cultural diversity. Mr Clappison: So it appears that in respect of both women and people from the ethnic minorities you are doing better than any of the political parties, and certainly mine. Q120 Chairman: I think we need to turn to the model and structure of the Commission because you both have views on different aspects of this. For example, I think Elizabeth Gloster has indicated that in your view the legal members of the Appointments Commission should be appointed by the professional bodies rather than as a consequence of straightforward open competition. The pattern we observe in Scotland, for example, is that their Appointments Commission miraculously had what seemed like the most appropriate person for the Faculty of Advocates but who had arrived their by open competition. Whether such a neat solution would arise in England I am not sure. Should it be open competition or should the professional members have some kind of representative role? Ms Gloster: You will have seen from our paper that we took the view that it is important that the Commission reflects a suitable amount of judicial knowledge about applicants and therefore, as you see we recommended, there should be a considerable number of members of the Commission who are judges, not just Court of Appeal judges but also representatives of the Circuit Bench and the District Bench as well as the High Court Bench. We do not see that there is any utility in open competition for such places. We think it is more sensible, as we have said in our report, that they are put on there by the Judge's Council or ex officio in the case of the Lord Chief and the Vice-Chancellor. We consider that the other two members from the Bar and the solicitors profession should be appointed by their professional bodies. We think that there will not be a vast desire for people to sit on this Commission in the sense of open competition being necessarily the best way of producing the appropriate person to go from the relevant levels. So far as lay members are concerned, we have identified how we think members should be appointed. That is at paragraph 48 of our paper, page 25, where we think there should be an independent appointing body who appoints appropriate lay members. Mr Kelly: Could I add in respect on the lawyer members, we think it is important that the Judicial Appointments Commission should command the respect of the professions and that is one of the reasons why we have suggested that there be two practising lawyers - as opposed to judges on it - one barrister, one solicitor nominated by the heads of the respective professional bodies for that reason. Mr Williamson: If I could start by picking up the last point that was made, we do have a different view. We do believe there should be a practising solicitor and practising barrister, but we think they should be selected in accordance with the Nolan principles. It is not right that the two members should be representatives of their respective sections of the legal profession because they may be seen to be representing the interests of that particular group. We would therefore go for open competition for one barrister and one solicitor. I think, Mr Chairman, this is the area where the Law Society differs most from the Bar in the terms of our responses, and you will have read ours (it is around pages 19 and 20 that this covered). We believe that the Commission should be comprised of a lay majority, ie if it is 15 members then it should be eight lay people and there should be a lay chairman. I would concede that there should be senior judges also on the Commission and I would concede that it may be appropriate for the Master of the Rolls and the Lord Chief Justice ex officio to be members of the Commission. Our basic point is that we go for open competition for all its members subject to the Nolan principles. Ms Cahalane: We feel that the current Commission for Judicial Appointments - although it has a slightly remit - has demonstrated that plenty of high calibre people of a non-lawyer background seemed very interested in serving on that Commission and are well able to do two things. One, to command the confidence of the professions, the judiciary and the public, and secondly to grapple with the issues surrounding independence of the judiciary, judicial appointment, and all the other important issues that are at stake in these consultations. Q121 Ross Cranston: Do you not have a problem, in terms of your approach, of infinite regression? Who then selects the people who are going to select the people who compete? And who is going select them? Ms Cahalane: We have suggested in our response a Nolan type board. We have suggested the First Commissioner for Public Appointments, an HR specialist, a senior judge and the Lord Chief Justice or a very senior judge, and then one independent member of the panel. Q122 Chairman: These are going to be selected on the Nolan principles as well, are they? The Bar Council have the view that a majority of judges is somehow necessary. Ms Gloster: That reflects the European Charter on the statute of judges. What is the reason for it? When you are selecting judges to sit at Circuit Bench level and High Court level one does need on the selection panel to have people who actually know about the potential judicial abilities of the candidates. Whereas I can quite see - and it is reflected in our paper - that there is a need for an appropriate number of lay representatives, one must not lose sight of the fact that in order to uphold the merit principle there is a need for the appointing body to have knowledge of the qualities of the applicants. Q123 Mr Soley: Do you agree that the Bar Council has two problems with your model? The first is that what we are doing is opening this up to much more public scrutiny and people will look at your model and say, "There's a majority of judges on here". It is a bit like the old Press Complaints Commission where there was a majority of editors on it. The second problem with it is that particularly if you have people on there selected from the Bar (or whatever) by the Bar, then at best you will have a representative, at worst you will have a delegate. Mr Kelly: What we are speaking about is one barrister out of 15 people on it. It will be a representative. I understand your argument about delegates, but as I understood the position even members of Parliament are representatives rather than delegates. You are elected to represent an interest. This is solely in order that the professions can be assured and can retain confidence in the workings of the Commission. As for the judges, I am not aware myself that there is any suggestion made by anyone that the judges are not capable of being trusted to actually carry out the task that is given to them with complete intellectual integrity and integrity in every other fashion. We think that it is important that we do adhere to European wide standards and standards that, as a country, we have been rather keen to adhere to. Successive United Kingdom governments were at pains to insist that Judicial Appointments Commissions consist of a majority or judges. Mr Williamson: I do not doubt for one moment the ability of the judges to do this work, of course. It is very important that the confidence of the profession is maintained, but that is secondary to the public interest. I think that the public interest today demands much, much more lay involvement than we have had hitherto. It is really for that reason that I believe that there should be a lay majority on the Commission. Q124 Mr Soley: You are in a situation where, as Mr Williamson said, you are going to be open to much more public scrutiny and people will ask why there is a majority of the profession on this. I am not sure you have given sufficient weight to that. I do also say on your member who represents or who is a delegate of, that arguments about the House of Commons do not wash in a sense because if it did we would have the whole of your Committee like that and that would be a bad thing too. What I would be saying to you really is that I would not have any on there who are a delegate or a representative in any way because they will end up as the lame duck member because they will be seen as the voice of that group. Mr Kelly: In that case if they are merely one member they are not going to have a decisive impact, are they? Q125 Mr Soley: It affects the confidence of the public, though. Ms Gloster: Can I give you an example about how the selection process will work. Let us say you have an application to become a High Court judge from a practitioner, whether he be a solicitor or a barrister on the Circuit. Who knows about the abilities of that particular prospective candidate to become a judge? He has appeared in courts in front of whom? In front of local judges on the Circuit, perhaps in London. If you have only lay members or a majority of lay members you will be judging that person's ability to complete an application form and how he or she appears in interview. You cannot underestimate, in my opinion, the local knowledge - whether we are talking about an applicant to the District Bench, the Circuit Bench or the High Court Bench - of people who have seen the man operating in practice or if they themselves are not on the Commission of soundings they have taken from people who practise in that area or have seen him practise. Q126 Chairman: In practice it does not depend on whether the composition of the Appointments Commission is a majority of judges. Ms Gloster: The point I am making - and this is another of the points we make in our paper - is that there ought to be (and we recommend) abilities to co-opt people onto the particular committee that is making the particular appointment, if one is talking magistrates or district judges and reporting to Parliament. Q127 Ross Cranston: I think there are some very fundamental social forces here so the question I have is, is this Commission going to produce the changes you want? If I look at local government in my area and surrounding boroughs we have had Nolan principles for 10 or 15 years and yet with women, for example, I have one woman who is the Director of Social Services, a sort of traditional woman's role; in the neighbouring local authorities there area very few women. Is this going to produce the great results that we would all want to see, or do we have to do other things? I am just wondering if you are putting too many eggs in one basket thinking that this is going to produce magnificent results. Mr Williamson: I do not think this is going to produce all the right answers but we think it is very much a step in the right direction along the lines that is in the consultation paper, which is why we have supported these measures for more than ten years now. I think it would go quite a long way. Ms Cahalane: You do have a point and, in fact, in our consultation papers that is a concern we have expressed that the Commission of itself will not lead to the desired policy outcomes that the Government has articulated. It particularly will not do so without very clear terms of reference and without adequate resources. We are very, very concerned about the low estimate in the consultation paper. If this is a Commission which is truly to encourage a more diverse range of applicants, if it is truly to work with the professional bodies in removing some of the systemic barriers - we all admit things have improved but there is a long way to go - if it is truly to aim for high quality and complete independence it will need substantial resources. These things do not come cheap. Q128 Ross Cranston: Does it not also, as you have indicated, require a political will? You say that will come from the way the statute is drafted; I would say it will come from a definite policy from Government. You want to reduce the role of the Government; you want to reduce the role that the minister or whoever might have. Ms Cahalane: Yes, we do. We have suggested a number of checks and balances in terms of democratic accountability through Parliament, but we believe there should be minimal politicisation of the appointments process and minimal political involvement in the final decisions. Q129 Ross Cranston: Do you not possibly then get unimaginative appointments because committees typically are going for the lowest common denominator? Ms Cahalane: But equally, if it is left in the hands of the minister you could get equally unmatched ----- Q130 Ross Cranston: It depends on the minister. Ms Cahalane: Yes, it does. It is a matter of luck. If you had a very conservative (with a small "c") minister and the Commission put forward two highly imaginative candidates and one safe pair of hands and the minister might decide that she likes the safe pair of hands. Even with a choice of three you could have that outcome as well. Q131 Chairman: Are you in favour of the minister having a choice of three? Ms Cahalane: No, we are not. We are in favour of one only for senior appointments with appropriate consultation first with senior judiciary. One recommendation should be put to the minister or the prime minister for recommendation. Mr Williamson: Taking further the point about resources, that is in terms both of money and people. The Commission for Judicial Appointments and Sir Colin Campbell have identified the importance of a chief executive of sufficient character and calibre. Staffing and resources to make this work is absolutely critical. Chairman: This Committee has experience of reporting on a body set up with high expectations which was not able to meet them. You will see from our report on CAFCAS. I want to turn to the Supreme Court itself now. Q132 Dr Whitehead: Both the Bar Council and the Law Society have indicated that you feel it would be inappropriate for senior holders of judicial office to be members of the House of Lords and indeed should not sit or vote during the currency of that office. That is a joint reflection on this, is it not? Mr Williamson: Absolutely, yes. Q133 Dr Whitehead: However, at the same time the Law Society evidence suggests that there ought to be a mechanism by which members of the Supreme Court could make known their thoughts on issues of public policy by some means, not entirely defined, but as a contribution to the legislative process. Mr Drabble: The Law Society has said that. We have not said that save with one exception where we have recognised the role that the Standing Committee on the Scrutiny of European Legislation plays and put forward a distinct proposal for reconstituting that Committee. I do not think that is a universally popular view even with the Bar Council. It does seem to me that if you are having the reform you recognise what you are losing and one of the things you are losing is the role of the Law Lords in particular in that Standing Committee. There are no fundamental constitution rules to apply if you are having a statute establishing the court. You cannot, in that statute, give the Law Lords back some sort of official consultative role. The experience has been valuable both for the Lords and Parliament. That is the basic thought. I think the Law Society thought is probably similar. You could institutionalise in the statute if you are starting from scratch a role for the expertise of the existing members of the Court. Mr Kelly: May I put one caveat to that and that is my personal position is that you either have a split or you do not. I find it impossible to imagine a semi-divorce. Whilst I recognise the very good work that has been done - very high quality work - I think that the reality is that when you have a separate Supreme Court it means precisely that: the relationship is severed and at an end. As Richard has said, that is not a view shared by all of the profession that I lead, but it is my view. Q134 Dr Whitehead: My slight puzzle is that why is it right that senior members of the judiciary might make a contribution to legislature by passing comments on issues of the day outside the House of Lords but wrong that they should do so in the House of Lords. Ms Cahalane: We would envisage it very much as preliminary before any debate or consideration. It would not at all be involved in debates or decision making on the actual legislation as it is going through the Houses of Parliament and I think that would be the key difference. Mr Williamson: At the moment the Lords of Appeal in Ordinary sit in the House of Lords in addition to other holders of high judicial office such as the Master of the Rolls and the Lord Chief Justice. We believe that sometimes the interventions - if only for the purpose of giving information - has been extremely useful to both Houses in being able to obtain views from particularly the Lord Chief Justice and the Master of the Rolls. Why we have said what we have said in our paper is that we think that there might be an argument for the ability to seek those views being retained, but, as Barbara says, not in any way should the senior judges continue to be part of the decision making process. Mr Kelly: In a modern democracy, as you well know, influential contributions could be made to the public discourse well outside Parliament. It is a situation which I hope would continue, that judges would feel able on matters which they felt touched on areas where they had a particular contribution to make to the public debate, that they would make their views known. I have no doubt that they would. There are, for example, such things as giving lectures, speaking to newspapers and so on. All of those contribute to the public debate - the debate that is actually going on in Parliament - but they do not have to be uttered in Parliament. Q135 Dr Whitehead: In terms of appointing, the Bar Council have mentioned in your evidence that it is inappropriate that there should be any executive involvement in appointments for courts below the level of the Supreme Court, but there might be ministerial involvement, that is executive involvement, in Supreme Court appointments. Why do you make that distinction? Mr Drabble: I do not think we do make that distinction. There has been a debate within the Bar Council - which is fairly faced up to within the reports - as to whether there should be some ministerial role. At the moment one candidate has been identified by either of the Commissions and the Bar Council view as a whole - following last Saturday - is that there should be a shortlist of one in both situations. However, Elizabeth and I do not agree about this and it is fairly faced up in the paper. My own line is that it is important to have some executive involvement because the executive does have an on-going stake in the court functioning rather than having public support, but a shortlist of one strikes the appropriate balance. Q136 Dr Whitehead: Have you not been attracted by the notion that the reforms essentially are perhaps creating a greater separation of powers between executive legislature and judiciary in the unwritten British constitution, and therefore the appropriate checks and balances are legislature rather than executive. Mr Drabble: Confirmation hearings. Q137 Dr Whitehead: I did not actually say that. Mr Drabble: Somehow or other you have to get a check or balance in, it seems to me. If you go for the model that is in the Bar Council paper - which is strikingly similar to what the Law Lords themselves are putting forward - you have a very small body that is making the appointments. You are going to have a significant judicial input into that very small body, whether it is a judiciary majority or just a minority; whichever it is you are going to have a lot of judges. If there is no executive involvement the question is where is the legitimacy coming from? Who is actually making the appointment but the judges themselves? That does not seem to me to be a player, although we disagree about that and the paper says that that will have to be debated. If you go for confirmation hearings or some other check that is Parliament I think the real danger is unimaginative appointments. You come back into that part of the equation. You have the minister facing a need to carry a Parliamentary majority behind a particular appointment. You insert confirmation hearings into the United Kingdom model and I think you get a minister who will not make the imaginative appointment for fear of Parliament rebuffing him. That is my concern. My paper is a fairly deliberate attempt to tie the executive in enough to stop it disowning the judiciary but without leaving the room for the appointment of the imaginative lawyer. Q138 Dr Whitehead: The offer of a choice of one and then a public reporting of the exercise of that choice together with an account made to Parliament does not appear to represent much of a role either for the legislature in any way appointing or checking or balancing the role of the judiciary. Mr Drabble: It is a long term check and it is not intended to be any more than that. You get legitimacy in the sense that the appointment is acceptable at the moment it is made. I am fully aware of the argument that you need some check or balance, that the appointment must be made by someone other than the judges themselves, but that shortlist of one seems at the moment an appropriate solution. Q139 Chairman: Do I take it that confirmation hearings do not fill you with excitement? Mr Drabble: They do not strike me as the right answer for the reasons I have already given. Mr Kelly: What they do - or are capable of doing - is shown by some confirmation hearings that they have had in the United States. They do very, very little to enhance confidence in the judiciary or in the entire system. They reflect rather badly, in my view, upon all concerned within it, not least those asking some of the more difficult questions. Ms Cahalane: I think we have been appalled by some of the recent coverage following the appointment of Lady Justice Hale. It would be absolutely horrendous if that type of coverage were to appear before a confirmation hearing. If any candidate were subject to that kind of coverage from certain sections of the media before they had to go before a confirmation hearing we feel it would do absolutely nothing to improve public confidence and it is imposing a burden on candidates themselves and may well put some potential candidates off. Q140 Ross Cranston: In terms of your unofficial views rather than a party line on this, is the official line pretending that the Supreme Court - in the present guise as the House of Lords - makes decisions that do not have any sort of social and economic ramifications when in fact it does. Whether it be in terms of pensions or a whole range of issues through to charter parties even, these are important decisions. You could call them small "p" political decisions in some cases. There is an argument in terms of an appointment that this is not a sort of neutral process in which it does not really matter, you are simply looking at the one person. Mr Drabble: I absolutely agree that the Court makes important social decisions; I would not dream of saying the reverse. The question is where on a spectrum of complete non-executive involvement - which is the line that one takes if one has the Appointments Commission itself making the appointment without any informatio(?)from the Prime Minister (if I am allowed to use Latin) to a substantial list or a confirmation hearing or something like that - does one draw the line? I suspect there is a kind of common ground that nobody wants the members of a Court being chosen for their social policy views although there is are recognition that their judgments will have social policy consequences. Q141 Ross Cranston: At least if you put up three names that gives some recognition to the fact that these people are going to be making important decisions for society and not simply making strictly legal decisions. Ms Gloster: But is that not exactly where it is important that you should not have executive interference because, let us say at the Lord Chief Justice level or the Master of the Rolls level? The Lord Chief Justice is critical in the determination of sentencing policy. Is one saying that one should forget about independence of a judiciary and separation of the powers which this new Commission is meant to bring about? Is one saying that the minister of the day wants to have a say whether the new Lord Chief Justice is a hanger or flogger or ----- Q142 Ross Cranston: I do not think it is as crude as that. Ms Gloster: It is as crude as that. Q143 Ross Cranston: No, it is not as crude as that. I think it is an issue of legitimacy. Unless there is some sort of political input then there is always the danger that the politicians are then going to say that they really did not have any say in the appointment of this person they are less inhibited in criticising the Court or the individual appointees. Ms Gloster: But that does not happen at the moment under the present system, does it? There may have been criticisms in the past, but certainly the view of the Bar is that the system so far has worked well in the sense that the Lord Chancellor has not been traditionally subject to political interference. Q144 Ross Cranston: We do not know whether he had three names or one. Ms Gloster: We need not go there, but is it not important, if the whole point of this new Commission - whether one is talking about the Supreme Court or the Judicial Appointments Commission - is to underline and preserve independence? Q145 Ross Cranston: I guess I do not accept the premise that this is totally independent; I think there are other mechanisms to protect independence. Mr Drabble: The key is legitimacy. That is the topic that I think divides Elizabeth and myself in the sense that one needs some overt legitimacy for the members of the court. What I completely agree with Elizabeth about is that we do not want the identity of the individual members of the Supreme Court being a matter for debate within Cabinet. If you look at the comparative examples - Australia has heavy executive involvement in the appointment of the members of the Supreme Court - the academic commentary is that there is partisan political debate about the identity of the appointments. The conjuring trick somehow is to replace the role of the Lord Chancellor (who meets everyone's concerns) with a check and a balance which does not lead to overt Cabinet and party political involvement. Q146 Ross Cranston: I am not sure that Australia was the best example. The United States is your best example. Mr Drabble: Yes. Q147 Keith Vaz: The Select Committee was away during the appointment of Lady Justice Hale, but the press cuttings that I saw were extremely positive about her. Although I agree with you in that I am not in favour of confirmation hearings, there is nothing wrong with someone who has been appointed coming before this Select Committee, for example, and being questioned about their views on a whole range of issues. Ms Gloster: Why, with respect, are a Lady Justice's or a Lord Justice's or a Lady Lord's or a Law Lord's views on social policies relevant to her ability to be a good judge? Why is it relevant that you know about her views on fox hunting, for example? Q148 Keith Vaz: I am not suggesting that we should question her on foxhunting. What I am saying is that there is nothing wrong in principle with someone appointed to the highest levels of the judiciary coming before a Committee of the House of Commons and answering questions. The Governor of the Bank of England does this on a regular basis to the Treasury Select Committee and there is nothing wrong with the a Lord Chief Justice, after appointment, doing that. Ms Cahalane: That is the point exactly. Q149 Chairman: It is the practice of the Committee to seek, with the cooperation of the senior judiciary, their advice and input into matters we are considering. That may be one of the things that would have to be done to fill the gap if this gap opens up over, for example, draft legislation, being considered by a select committee, which I gather from what you said earlier would be an appropriate stage for that intervention to take place. Ms Gloster: But that is very different from cross-examining or examining somebody either before or after the appointment about their particular views about issues of the day. Chairman: I think Mr Vaz's point was that it depends whether it is before or after the appointment. Keith Vaz: I would expect it to be after the appointment. Chairman: We are very grateful to you all for coming. We have a number of other witnesses this afternoon otherwise we could no doubt spend the rest of the afternoon debating some of these issues with you. Thank you very much. Examination of Witnesses Witnesses: DR KATHERINE RAKE, Fawcett Society and SEAMUS TAYLOR, Director of Strategy and Delivery, Commission for Racial Equality, examined. Q150 Chairman: Welcome to the Committee. We are very glad to have both the Fawcett Society and the Commission for Racial Equality represented by Katherine Rake and Seamus Taylor. Perhaps it would be helpful if you could simply take on the discussions - which you heard earlier - about diversity, what we should be doing and why in the context of the Appointments Commission. I am giving you the opportunity to refer to greater diversity on the judicial bench as an objective. Mr Taylor: We welcome the opportunity to meet with you this afternoon and to engage in this discussion and the opportunity we had to submit a response to the DCA consultation. We see the modernisation of the judicial appointments system as at the heart of the wider modernisation of justice in Britain. We have a very particular interest in this and the issue we have is in the diversity of judicial appointments but specifically how race equality can be furthered in the process. Ultimately the end state we believe is about enhancing public confidence and enhancing the legitimacy of the judicial system. We believe that in a modern diverse Britain having a diversity of the judiciary goes to the heart of building that confidence and legitimacy. From the CRE's perspective we would go so far as to say that success on the diversity and race equality agenda will be a litmus test for wider modernisation of the justice system and a modern effective judiciary in 21st century Britain we would say would have to be a diverse, high quality judiciary. There are a number of contextual points that we would wish to make. The public confidence in the judiciary is central to legitimacy and the judiciary, when presiding over cases, are seen by the general public as the face or the dispenser of justice and if judges are seen to reflect a narrow social group then it is easy for people to allege that they may be biassed; it is easy for people to allege that they may be unsympathetic or out of touch and whilst such perceptions may be unfounded they can undermine public confidence and the legitimacy of judges and the judiciary more widely. We know that there are particular issues of low confidence levels amongst ethnic minorities, particular in the criminal justice system and in part based on evidence which shows racial disparities from the point of arrest through to sentencing. The available evidence needs to be unpacked further to fully understand what contributes to it and it may not constitute evidence of direct racial discrimination but clearly race is a factor. The danger to the judiciary is that in the absence of having an explanation or greater diversity amongst the judiciary the data that is available can undermine public confidence and can be seen to be as a result of discrimination. The CRE believes that a more diverse judiciary which is appointed on a transparent appointments procedure should strengthen confidence overall within the wider justice system and help remove some of the perceptions which exist. Our overall aim is not just to get enhanced job opportunities for ethnic minorities but it is to actually enhance the justice system such that it is held in the highest level and broadest level of confidence by the diversity of Britain today. In order to do that we feel that there is a fundamental link between how justice is dispensed and those who are dispensing it. Dr Rake: I would absolutely echo those points and I think that we have particular concern about confidence in the judiciary in terms of the very gendered crimes of rape, sexual assaults and domestic violence. We know, for example, that as a marker of public confidence only 10% to 12% of women who experience sexual assault are actually making a complaint at all. Of those who do make a complaint only 6% result in a successful conviction. Those are clear markers of lack of confidence within gendered crimes in particular. I think there are a number of arguments for why we need increased diversity. I think the judiciary is absolutely at the heart of a functioning democracy and just like representation in Parliament matters, women's representation in the judiciary matters. Without representation we have women excluded from a key set of decisions; men make up 49% of the population but in the High Court are making 94% of the decisions. We have a clear disparity there. I think that the experience of women within the Criminal Justice System is often affected by that quite heavily. Currently we are running a commission on women's experience of the Criminal Justice System and what we are hearing from women who have had experience of the Criminal Justice System is that they feel outnumbered literally in court in the way that they give evidence and the way they feel their evidence is perceived is very much affected by that. I think also there is a symbolic importance of having increased numbers of women in the judiciary. The judiciary at its heart is about promoting equality and fairness and it cannot be a system that excludes the majority of the population from that; that would be anomalous. There are also issues about the judiciary losing a very large pool of talent in this country by not promoting women in equal numbers. I think there is a final argument which is about women bringing a different perspective and a unique experience to bear. This is an argument to be used with great caution because it is a risk of stereotyping women's and men's experience. Having said that, women's and men's experience remain distinct and around those gendered crimes in particular - certainly from the terms of perception of the public as to whether there is fair treatment and just hearing - it is very important that women's experiences are heard within the judiciary. Q151 Mrs Cryer: What both of you have said is music to my ears; I have really enjoyed listening to your submissions. You have almost taken away everything I was going to ask you. Just to pinpoint something, we have been hearing a lot this afternoon about how we could encourage applicants both from the ethnic minorities and women for judicial positions. Do you think we should be going down the path of saying that we are in favour of some form of positive discrimination? Not that just because you have a brown face you are going to get an appointment or because you are a woman you are going to get an appointment, but because if you are from an ethnic minority your experience of life will be greatly different to that of the white people in this room and you would bring that experience to bear. So instead of just looking at paper qualifications and length of service we are sort of looking at the value-added of a brown person's experience by way of discrimination, by way of racism and possibly by way of immigration rules and regulations. For women similarly. She will have possibly have experienced domestic violence or she will have friends who have; she may well have experienced the difficulties of bringing up a family and balancing a career. All of these things I feel - and I hope you do - will be value-added to what she has already got by way of paper qualifications and length of service. Could both of you comment on that, please? Mr Taylor: In terms of race equality we do not favour positive discrimination. What we would say is that what is needed is a multi-faceted approach to make progress on this agenda. Generally opening up the appointments process will go a long way, right up to the most senior levels. Openness and transparency are central to building confidence and for people coming forward and being willing to apply. We would say that there is a need to set targets. Targets have been set in other parts of the public sector and they have exercised a wonderful discipline on services moving forward in terms of making progress, although we know there is still a long way to go in services like the police in terms of meeting those targets. However, we believe that targets should be set and they should be matched with continuous, rigorous monitoring and review and public reporting on achievements against them. We believe that leadership on this agenda is crucial and we welcome the leadership that the Government has shown in initiating this modernisation exercise. We believe that that leadership can have filtered down effects and can result in a sense and time in a domino effect where some people are appointed and then this gives people a genuine sense of belief that others can follow it through. Then it leads to people coming forward and being willing to apply. We believe that mentoring and shadowing schemes should be put in place because that can give people a genuine, on the job, taste of the job - what it is like in practice - and then decide whether they want to pursue it and whether they would have the confidence to do so. We believe that whilst there should not be positive discrimination there should be positive action training and the Race Relations Act provides for positive action training under section 37 where there is under-representation in specific professions. We believe that there should be basic things like provision of information to prospective candidates because there is generally a sense that this whole area is a kind of closed shop and people do not quite know how it operates and how it works. We know that it has gradually and increasingly opened up in recent years but we feel that equal access to the information about how opportunities arise and how the process is conducted would go someway. We feel that there is a need for a multi-faceted approach which is in part about bringing in talent that is not there already but also bringing on the talent that is there in the lower levels. If you look at the figures for the judiciary, if you start at the top there are no ethnic minority law lords, no ethnic minority Court of Appeal judges, no ethnic minority heads of division; 0.8% ethnic minority Circuit Judges, 0.7% ethnic minority Recorders and then as you work your way down that gradually increases to the lower levels. We believe that there should be measures put in place which would enable people to rise from the lower levels up through the system and we welcome the proposal about a judicial career path because it may help in some ways there. We also believe that removing the perceived signifiers of a closed shop is crucial - the secret soundings culture - or at the very least, if they are not removed - we believe they should be removed - they need to be made more consistent, transparent and discloseable. The previous witnesses talked about whether the names are known of where soundings are taken from, but it is not disclosed; the whole nature of it is still shrouded in a certain level of secrecy. We believe that we cannot just wait for a trickle up effect. We need to start to take concerted, positive action now. You cannot just wait for the women and ethnic minorities who are at the lower levels to spend 15 years to meet the criteria to be able to move up. We actually think that alongside people gaining the experience there should be these positive, pro-active systematic measures put in place. Q152 Chairman: Can you gain the necessary experience if you do not take t he 15 years grind - or whatever it may be - in gaining sufficient experience to gain the independence that was being talked about in our previous evidence session, independence based on knowledge of what happens in a court, what would be tried on, what kind of judgments you are going to have to make. I pose the question really to Dr Rake because you have argued that the House of Lords - or the Supreme Court as it will be - perhaps before it is changed ought to have more women put into it quickly. I presume from that that we really could go a long way down the age range and put people in who had sufficient experience even to take on work at the highest levels of judicial office. Dr Rake: There is a very big question here about the pace of change. We talk about the trickle up effect and when we come to the current system it has taken us 81 years to get from the first woman appointed to the Bar to the first woman Law Lord. In terms of getting parity we would be expecting - purely trickle up - to wait for another century, maybe two centuries for that to happen. I think there is a question around public confidence and that pace of change. Clearly there is a public appetite for a much more rapid pace of change there. I think what is required is a re-assessment of the skills and competencies of those judicial posts. We have modern human resource practice which allows us to do that. Often when people say 10 or 15 years' experience they are using that as a shorthand for a set of skills and competencies. What I think needs to happen is a thorough review of what skills and competencies are really required for that post before you use that sort of shorthand measures like they need 10 years' experience. It is really a matter of getting underneath that and looking at what is required of that post and what skills need to come into it. I think a term that is often banded around is that of merit, as though that is something we all understand. Clearly we all have very diverse views of what merit really means and when we are using those arguments I think it is very important to get underneath that and see what actually is merit within the judicial process itself. Clearly proposals around career structure would mean opening up opportunities to younger candidates for them in order to build a career path through the judiciary and that is something we would warmly welcome. Q153 Chairman: To take the case of the Supreme Court, would skills and competencies include having experience of making the kind of decisions - or even appeal decisions - which are then appealed on to that Supreme Court? Dr Rake: Clearly if there is a set of knowledge that you need to acquire and a set of experiences you need to acquire, once you have identified that you can find all sorts of different routes of getting it: through training, through having a particular career path where you identify the experience that you need to build that up. I think the problem at the moment is that that is all left in very unspecified terms. What that means is that with the secret sounding system as it is working at the moment people - wittingly or not - are saying "I do a rather good job and I think they look rather like me" which means that you get a reproduction of the system. For example, "I happen to be an older white man, I am doing a rather good job so why not promote another older white man into the post". I think what we are arguing for is really a root and branch look at what those skills and experiences are that are needed. Q154 Mr Clappison: There is wide spread perception that there are differences in people's legal ability. You have your own definition of merit, but do you not think it would seriously undermine public confidence - and perhaps be an own goal from your own point of view - if there came to be a perception that people were being appointed not on ability but on some other criteria? Dr Rake: I am arguing exactly the opposite. What we need to get to is to the legal ability and the system at the moment is not necessarily pinpointing the legal ability. What it is pinpointing is whether someone has been around, whether they are clubbable and all those other kind of attributes. What we need to do is put in place a competency based system that absolutely identifies that legal ability in a transparent, open and fair fashion. Mr Taylor: I think a starting point is that the principle of appointment on merit must prevail in all circumstances. That would be our starting point. The issue which is then raised is: what constitutes merit in a modern 21st century Britain? This issue of clubability and other issues much be questioned. A key issue to be knocked on the head is that opening up diversity will somehow simultaneously lead to diminishing quality. On the contrary. We would argue that diversity is a dimension of quality and merit. We would actually argue that in instances like this quality may perhaps need to begin with an "e" in Britain today, that you cannot do the job well unless you do it fairly. Effectiveness and equality go hand in hand, and that applies to the judiciary and the dispensing of justice. We would say that there needs to be this very careful examination of the criteria of what constitutes the person specification for being a good judge and proven ability to dispense justice in a modern diverse society as part of that. Q155 Mr Clappison: Merit is quite different from race, gender or any other consideration such as that. Merit is something which stands on its own. Would it not undermine public confidence in the system if people felt that appointments were being made not on merit but on some other criteria? Mr Taylor: But there already is a question about public confidence in the system. There already is a question about legitimacy. There is a perception that the judiciary come from a particular narrow social strata, that it is a social elite and that contributes to perceptions of already limited confidence and a questioning of legitimacy. We are saying that steps can be taken which do not compromise merit in any way but actually build on the integrity and impartiality and the current system to further enhance confidence and legitimacy by actually enabling the wider talent pool to flourish within the system. Q156 Mr Clappison: But what you describe as the social characteristics might be related to the type of people who are going into the professions and who are actually the most able people in those professions at the present time. Is it not the case that there has been a huge change in the profession and there is a huge diversity of people coming in who fully deserve encouragement and who undoubtedly have the ability to rise to those positions themselves? What would undermine their cause - and I suspect yours - would be to appoint people on the basis of gender or race or some other facet of the social characteristics rather than on ability? Mr Taylor: We are not arguing or making the case for appointment of people on anything other than merit and no changes to the appointment system hould risk undermining confidence in the independence and the high standards of the judiciary. That is our starting point. On the contrary, as I said diversity should further build and enhance the existing high standards. What we need to do is to have this root and branch review, to critically appraise what are the current modern job requirements? What is the current appointments process? What about it is essential? What is required for a modern 21st century Britain? What perpetuates a closed shop? What perpetuates the perception - if not the reality - of a judiciary that is narrow, that is seen as not holding the confidence of all and is seen as not being legitimate in the eyes of all? What would enhance that? They all must be dimensions of competence for dispensing justice in a modern society. Q157 Mr Clappison: I have to say that although I agree with quite a lot of what you said I do not agree with the general critique that you are making of the judiciary on social grounds. I have to put to you that there is amongst a very widespread section a very, very widely held view in society - and held as well by people coming from abroad to look at our system - that we have a system of high standards and great integrity which is admired throughout the world. Mr Taylor: I started by saying that our starting point is that the principle of appointing on merit prevails and the measures that need to be taken need to build on and enhance the existing levels of confidence and legitimacy, not to undermine it. There is a recognition of the integrity and impartiality but it could be enhanced. There is significant room for improvement. Q158 Mr Clappison: I think you are saying that although it would be good to see diversity we should not do anything which jeopardises those characteristics of our system in maintaining the high standards. Mr Taylor: Absolutely Dr Rake: Could I add a point here which is this assumption that the current system is working on merit alone. I would contest that quite strongly. I think one of the things that has been shown by Sir Colin Campbell's Commission is that many women and black and ethnic minority candidates with enormous merit were coming forward and were being turned down within the process. The notion that we have a system that is entirely based on merit as it stands - and that we are trying to put in a system which is not based on merit - is absolutely the opposite way round from what we are proposing which is that the current system is not selecting on merit and what you do need to do is get to the legal ability and the real merit behind those candidates. Q159 Mr Dawson: Are you not, in fact, suggesting a system in which the middle aged, white, middle or upper class male from a traditional background is actually able to demonstrate much more effectively their ability to do these very important jobs? If that is the case, what are the criteria, what are the knowledge, skills, abilities and experience that you would be expecting any person to demonstrate? Dr Rake: I do not think that is the case. We see already that in the pool coming through there is much more mix and diversity. Clearly what you are trying to capture is the skills that those people are bringing into the profession. I think that as the pool becomes more mixed and if you have a proper process in place that does select on merit rather than having discriminatory elements - as the current system does - then you will see that coming through. I think there are two challenges here. One is, in the short term, how do you use the pool that you have more effectively? How do you draw on the full set of talents within the pool? As I said, I think what the Commission demonstrated was that the current system is not drawing properly on the existing pool. The second and much bigger challenge is how do you widen that pool and how do you bring new candidates into it? I think there you begin to touch on issues like needing to introduce more flexibility, for example, in the way that the judiciary functions in order to encourage more women to be more active in senior roles. It also raises issues of not just passively receiving candidates but actively going out to communities that are currently under-represented and cultivating those candidates in the way that business has been doing for many years. I think that is a broader set of challenges, but we are not even at the stage where we are using the pool we have in a non-discriminatory way. That is the first set of changes that need to happen in the process. Then there are issues about drawing out of a wider pool. Q160 Mr Dawson: I was trying - no doubt inadequately - to suggest that no-one need feel discriminated against by the sorts of procedures that you are talking about introducing, but I was interested in what you would see as the essential requirements for someone passing judgment in a modern society. Dr Rake: I do not think the answer lies with me. I think the answer lies in an independent person with human resource experience and capacity who would be able to analyse the skills and experience that were needed for that job and to do that in a way where there could be a consensus and a shared view of what their skills and competences are. I think you need an expert and an expert set of eyes to do that. Ross Cranston: I do not want an answer now, but maybe you could put a note in. I do not want to loose this point about public confidence. Can you do a note on the empirical evidence on the extent to which there is a lack of confidence? I think Dr Rake mentioned sexual offences in particular, but it would be very interesting to see the empirical evidence about lack of confidence. Q161 Mr Soley: I am fairly sympathetic to what you are saying, but it seems to me that the core of your argument is the definition of merit. What you are arguing, I suspect, is that when a comment is made by a judge or whoever in the legal profession that shows gender or ethnic discrimination - for example rape is enjoyed by a woman or some racial comment - that that shows lack of merit; the lack of merit being the inability to make a fair judgment on the facts rather than the perception of the person. One day, if that is what you mean, is your task going to be more focussed, ie you have to put that into the definition of merit in some way and then you have to find a way of making sure that people have that ability to rise above any prejudices of that type that they might hold? That is a rather difficult challenge. It is an important one, but it is a difficult one. Mr Taylor: I would agree with you. I think in the DCA consultation paper the appropriate qualifications were listed for senior levels in the judiciary. There was a whole range of criteria listed including legal experience, legal knowledge, intellectual and analytical ability, sound judgment, decisiveness and a whole range of things including understanding people and society. Perhaps that could be refined and built on to talk about understanding diversity of people in society and some appreciation of that. Also, perhaps the legal experience could be revisited to not always appoint to the senior levels drawing on people who have substantial levels of advocacy but perhaps widening the talent pool to be able to draw in people who have had an academic career in law in part, corporate lawyers, administrative lawyers, people from diverse backgrounds who, for a variety of reasons, may have obtained their experience by less conventional routes. I think the person specification could be revisited and refined in a range of ways that would not undermine standards in any way but could enhance diversity. Q162 Peter Bottomley: So I assume you would go along with the expression by Lady Justice Hale that the present collection of judges are disadvantaged by the general narrowness of the talent pool that comes to them? Mr Taylor: Sorry? Could you repeat that please? Q163 Peter Bottomley: Coming back to merit, merit can mean something like quality. It can also mean value. By bringing in diversity you actually add to the competence of the adequate justices who are there already. Mr Taylor: Yes. Q164 Peter Bottomley: In the CRE report, paragraph 16 on page 5, you said you were disappointed to note that the only organisation with views on racial diversity amongst the judiciary who have been consulted are the Society of Black Lawyers and the CRE. Do you think the Government should consult more widely on proposals for their impact on racial equality as part of the race impact assessment? Can you give illustrative examples of the kinds of bodies which you would include? Mr Taylor: First of all we would advise that the proposals as set out here should be subject to a full impact assessment and consultation under the Race Relations Amendment Act because they are a significant policy change which has potentially a significant impact on people's experience of service and quality of life. We would recommend that a full impact assessment is conducted. In terms of organisations that could be consulted, we can provide you with a list of non-governmental organisations, which would perhaps include organisations like the Runnymede Trust, organisations like ROTA (Race on the Agenda), the Stephen Lawrence Charitable Trust. There is a range of organisations operating in different communities and across communities that we could suggest to you. Chairman: I have a feeling that had you put that in a formal response to a consultation paper, the Government might have sought your advice from the beginning on who to consult in that area. We are very grateful for your attendance here this afternoon and we look forward to taking advantage of it as we prepare our report. Thank you. Examination of Witnesses Witness: RT HON LADY JUSTICE HALE DBE, Lord Justice of Appeal, examined. Q165 Chairman: Lady Justice Hale, welcome. Congratulations. We are delighted to see you here in this capacity and this is definitely not a confirmation hearing. We are here to take advantage of your knowledge and to draw on some of the points you have already made in public discussion on the Supreme Court itself, on judicial appointments and these matters, and we hope you will not be inhibited by being the new member of the body which we are discussing. You drew something of a distinction in some of the things you have said publicly between the kind of knowledge that is required for an appeal court generally and the kind of knowledge that is required for a Supreme Court which is deciding broad general principles arising out of cases rather than merely checking the accuracy of process or revisiting the way in which a case has been handled. Have we really got so clear a picture of the proposed Supreme Court - or Final Court of Appeal as it might be - that you can draw such a distinction and draw conclusions from it about being able to appoint a different kind of person to it because it is not like other appeal courts? Is the picture really as clear as that? Lady Justice Hale: Thank you very much for inviting me to come, Mr Chairman. I am delighted to be here. It does not feel at all like a confirmation hearing; it feels a bit more like a public examination. There is, as you quite rightly say, a connection between what the jurisdiction and the role of the new Supreme Court will be and the necessary qualities to serve on it. However, even as things are at the moment the House of Lords is always a second tier appeal and it has always taken a particular type of case of general importance. In those sorts of case the necessity to have the feel for how things were in the court room, across that battleground that a court room is - which may be useful in my present job - is nothing like as important when you are on a second tier of appeal and you are third guessing the case. That is my first point. The other point that I was trying to make is that one hopes that most of the cases that the Supreme Court would take would be ones of considerable seriousness where there were policy issues, social issues, small "p" political issues involved. The experience of just being in the courts in the ordinary way does not make you any better qualified to judge those sorts of policy issues than do all sorts of other ranges of legal experience. Q166 Chairman: We are not thinking here about a Supreme Court which operates as a Bench as a whole and reaches conclusions on wide social issues by majority decision and therefore it becomes an issue as to what the balance of views on it is: conservative judges, strict constructionist judges, liberal judges and so forth. Are you opening a door to that if you start talking about drawing people from very different backgrounds - perhaps academic backgrounds - straight onto the Supreme Court Bench. Lady Justice Hale: Do not let us say that they are very different. Academic lawyers are lawyers too; rather expert lawyers. They have often had a much wider range of experience of people and society than have the people who have spent all their lives in the Temple and the Royal Courts of Justice. My 18 years teaching 18 to 21 year olds at Manchester University gave me a very considerable experience of the real world and I found it extremely useful as a judge. Also, the thing that people from a different range of experience have got is a knowledge of how things fit into the bigger picture. When I was in the Law Commission making proposals for the reform of the law one did tend to find that it was the academic members who had a much firmer grasp of how changing that might or might not affect this, that or the other. In other words, they could see the bigger picture. Practitioners are often so focussed on the bit of the law they know a lot about that they can sometimes find it hard to translate that knowledge across fields. Q167 Mr Soley: I would like to pursue a little more this question of the functions of a Supreme Court because you drew, I think, on the views of President Barak of the Supreme Court in Israel who thinks it is there to defend democracy and to bridge the gap between law and society. There are a few of us around this neck of the woods who might say it is like a politician's job. I am trying to get from you a clearer view of what you mean by the defensive democracy and bridging the gap between law and society. What do you actually want the Supreme Court to do? Lady Justice Hale: I quoted President Barak in the context of a comment that the consultation paper has not really asked itself: whether the Supreme Court might think a little more deeply about the sorts of cases it took. That is my point. Is it simply correcting the errors of the appeal courts in England, Wales, Scotland and Northern Ireland? Or has it got a more strategic role in the development of the law and the preserving of certain principles. Q168 Mr Soley: You take the latter view. Lady Justice Hale: I would like to see us moving in that direction. Q169 Mr Soley: So would I. Can you tell me where it will get to if it moves in that direction? What would a Supreme Court look like? What would it do? Lady Justice Hale: We have an unwritten constitution so it would not be anything like the Supreme Court in the United States or the Constitutional Courts because it would not have as its role the measuring of the activities in other parts of government against the entrenched values in the constitution. It would not have that role, but it might move much more towards concentrating on the big international cases, human rights cases, the big public law cases and the big criminal law cases; not doing cases just because there was a lot of money involved. Q170 Mr Soley: For example, if someone challenged the human rights implications of being forced to carry an ID card it might look at that. Is that what you mean? Lady Justice Hale: That, of course, is quite likely if this happens. That would already be the sort of issue. Q171 Mr Soley: It is unlikely we will go down the road of enforced carrying, but I am using that as an example. Lady Justice Hale: It is a good example. Q172 Mr Soley: Another example, when you are talking about international relations, what are you saying? Are you saying that it might actually consider looking at some of the laws we have signed up to within Europe or, for that matter, a decision to take military action in Iraq? Lady Justice Hale: Forgive me, I probably have not made myself clear. What I was talking about was looking more closely at the selection within the existing jurisdiction of the sorts of cases it takes. I was not saying expand the existing role. Q173 Mr Soley: But you specifically mentioned international relations. What do you mean by that? Lady Justice Hale: I meant international treaties and the application of international treaties. Q174 Mr Soley: And whether they are legitimate or not. Lady Justice Hale: No. Not at all. What I was talking about was that certain types of case within the existing powers of the courts are obviously of such significance that it would be right for a Supreme Court to be looking at them. One of the examples I gave were things with a significant European Union dimension. The question of sovereign immunity which came up in the Pinochet case. That sort of thing; anything that raised an important question relating to the interpretation and application of our international obligations. That is the sort of thing I was getting at. I am not in any way suggesting at this stage that one enhances the jurisdiction of the courts generally beyond that which they already have. Q175 Mr Soley: I understand the Pinochet case and that fits with my understanding of one of the things the Supreme Court would do. What I am trying to get at - it may be my lack of understanding because I am not a lawyer - is that it seems to me that you could not help but expand on that. Would it, for example, say that there must be a referendum under the new European Constitution? Lady Justice Hale: I cannot for the moment, off the top of my head, see any way in which that Court could do that. Q176 Mr Soley: Even if it is said that it was a right that should be expected by the British people because it is a fundamental provision of the Constitution? Lady Justice Hale: There is no legal provision under which that would give any sort of jurisdiction to any sort of court, that I can think of. Q177 Mr Soley: Why is this judgment by Barak so important as the link between democracy and politics and bridging the gap between law and society if it cannot actually reach out to it? Lady Justice Hale: The Human Rights Act, for example, is aimed at preserving certain key principles of democracy and we have a role in relation to the Human Rights Act. Bridging the gap between law and society, as I understood it so far as President Barak was concerned - but I am less sure about this myself - is in the development of those principles of the common law so as to keep up with changes in society. That was one of the reasons why I answered the Chairman by saying that if that is indeed - and it is - an existing role for the House of Lords, giving recognition to the importance of some understanding of policy issues in that, there could be a good dimension in developing that role. There has been a recent case in the House of Lords about whether a woman who has been negligently sterilised is able to make a claim for damages if she becomes pregnant when did not want to. I hope Mr Cranston would agree with me, on general principles of the law of negligence she would be able to make a claim for damages, but in a case called MacFarlane v Tayside Health Board not very long ago the House of Lords held that that would be contrary to legal policy to allow her to claim more than damages for the pain and suffering of pregnancy and childbirth. That was a social policy and legal policy decision. We can all argue whether it was right or wrong, but that was a decision and it was about the development of the common law. They have since revisited that decision and reached a slightly different conclusion because they have had presented to them rather more of the legal policy arguments than they had had previously. That is the sort of thing I am talking about. Q178 Chairman: You referred to the democratic accountability in the judicial appointment process in one of your articles and I was not quite clear how you saw that that could be manifested if it was not to be in the form of any democratic Parliamentary accountability for individual appointments. What form could it take? Lady Justice Hale: That is a very good question to which I do not know the answer. I have been very interested this afternoon listening to your questions about that. As I understand the position - and you are the Parliamentarians and will know better than I - I do not believe by convention anybody from the Lord Chancellor's Department as was (or the Department for Constitutional Affairs as now is) is questioned in Parliament about individual appointments, in other words the minister. The Lord Chancellor has not been questioned about individual appointments; the ministers are not questioned about individual appointments. At the moment there is no democratic accountability for individual appointments but there is increasingly democratic accountability for the policies, the practices, the approach, which is what this Committee is all about at the moment. I would see the start being made in that and retaining that element of democratic accountability for the policies, the practices, the general approach, rather than going over to what will be much more radical which is democratic accountability for individual appointments. The Committee suspended from 4.16 pm to 4.55 pm for divisions in the House of Commons. Q179 Ross Cranston: The issue I raised with some of the other people was - and it came down to whether you have three or one in terms of the recommendation - that at the present time I think six but one of the last appointments to the House of Lords have been of Chancery lawyers. One might well think one wants a wider representation and I think that would resonate with what you have been saying about an appreciation of the social issues. Do you think democratic accountability means that the minister is presented with a list of three rather than one? The one might just be the Chancery judge whereas the three might have a range of possibilities. Lady Justice Hale: I am not sure that I see the necessary connection between those two points. If the appointments are being made by an appointing commission that commission might be expected to ask what sort of range of skills and experience is needed in the Supreme Court and take that into account when deciding to make a recommendation. I think it is a separate issue. You will have picked up that I have considerable reservations about my future colleagues' proposals for who should be recommending appointments to the Supreme Court because it does seem to me that it should not be the existing members of the Court with two token lay people who do that. It should be a much more broadly based appointing commission which would ask itself just that. Q180 Ross Cranston: If it were a narrower committee----- Lady Justice Hale: If it were a narrower committee it would be all the more important to have a shortlist of at least three. I would prefer to attack it from the other end. Q181 Keith Vaz: Can I turn now to judicial appointments. In your 10th Pilgrim Fathers' Lecture you say, "I prefer to regard the present judiciary as disadvantaged. They mean well. Few if any of its members are actively misogynist or racist: but they have a lamentable lack of experience of having female or ethnic minority colleagues of equal status." Bearing in mind we are not going to see massive changes in the short term, how are we going to ensure that the members of the judiciary get the kind of experience that you want them to have until those other appointments are made? Should they be sent away on an away-day with a lot of black and Asian people? Should they be invited to go to some social functions? How are we going to give them this experience before the appointments system changes? Lady Justice Hale: They already do have, of course, a certain amount of diversity training but that does not really address the point that I was making at all. The point that I was making is that you tend to regard other sorts of people as different in ways that they are not unless you are used to having them about. There is no substitute for having a reasonable diversity of colleagues and then to begin to take one another for granted and learn how to behave not only with colleagues like that but with other people. I am not sure that I would accept that it should take so very long to increase the diversity on the Bench, particularly the gender diversity. I do see that there are more specific difficulties with ethnic minority diversity because of the number of ethnic minorities. Q182 Keith Vaz: It was remiss of me not to add my congratulations to that of the Chairman. You are, of course, a role model. You are the first woman to sit in the House of Lords. Are you conscious of the responsibility that you have in what you say and what you do that women all over the country and all over the world will be looking to you as the person who actually made it. Lady Justice Hale: I am very conscious of the weight of that responsibility and my main concern is to discharge the function sufficiently effectively and appropriately as to make it a matter of course that there will soon be another woman. I do not want to pull up the drawbridge is what I am saying. Q183 Keith Vaz: But do you feel a little disappointed that you are going to be the last under the old system rather than the first under the new system? I have put this to other witnesses who have appeared before the Committee. We have this interim period where the Lord Chancellor has said that he wants to change the system but we do not have a new system in place. You have been appointed by a mythical figure - the white man in black tights - you are his last appointment as far as we know. Do you feel your legitimacy is affected by that or are you quite happy to have taken the appointment on the basis that there is going to be another body coming which is perhaps more representative? Lady Justice Hale: I do not think it would have made a lot of sense to say no just because the system could be improved, would it? There are two constituencies in a sense that are expecting something of me. One of them is women. The other are the none standard candidates for appointment. The other thing you will have picked up from what I have been saying is that I am a supporter of confronting the merit principle head on and saying that there are many more very able, capable, independently minded people of integrity who could make a contribution as judges than the ones who are currently regarded as the obvious candidates under the present system. I would put amongst those the sort of practically minded academic lawyer and public sector participator that I was. I know that the academics are expecting just as much from me as the women are. Q184 Keith Vaz: My point is that the present system which people say is not perfect has produced you; you have broken the glass ceiling. Given that circumstance how can another system be a better system? Lady Justice Hale: Is this the eccentric appointments point? Q185 Keith Vaz: No. It is whatever is decided after the consultation period. It cannot produce a better result than you, can it? Lady Justice Hale: I bet it could. You cannot expect me to agree with that. In any event, it does seem to me that a different system stands a better chance of producing more people. It is an indictment that it has taken so long. Q186 Keith Vaz: Indeed, and in the submission that your organisation has made there is an emphasis on the need for people to apply for posts when they become vacant. When you were appointed were you asked to apply? Did you get a telephone call? Did you get a letter? How is it done under the present system? Lady Justice Hale: As you probably know, until quite recently there were no applications for the High Court and above. The last position for which I did apply was the Law Commission. However, I, at least, have experience of having applied for jobs and have gone through an ordinary selection process. Q187 Keith Vaz: In terms of the appointments that are made at the moment, people do not have to apply; they are invited to apply. Are you saying you favour applications? Lady Justice Hale: I favour applications if only because it is transparent, it can - as we know in other walks of life -throw up candidates that people have not thought of. I do challenge this assumption that the senior judiciary know all the appointable people. Q188 Keith Vaz: Is there anything wrong with headhunters going round and pointing out suitable candidates? Lady Justice Hale: Just like Sir Colin Campbell - whose views on most issues I share - in universities when a senior appointment is vacant there is an advertisement but there is also thought given as to who might suitably fill the post. People are approached and may be invited to apply. If they are invited to apply they are then treated just like everybody else who has applied and subjected to the same assessment process. Q189 Keith Vaz: It is the transparency of the present system that worries you the most. You want an open system where people can put in applications, put down their referees. You want it to be like any other application for any other job. Lady Justice Hale: Any other - dare I say it - top job. Yes. I would also like the system to look very carefully at what is the pool of people in which we are trawling? What do we regard as the qualifications and experience necessary for the job? I challenge - I would do, would I not? - the assumption that 20 years as an advocate is the only qualification that is appropriate for appointment to the higher judiciary. I cannot be the only academic, the only person with my sort of background who is fitted for appointment. Q190 Chairman: Can you just clarify the point about a single entry point for judges where the Appointments Commission would decide at what level it was suitable to place someone in the system? That is a rather different concept from open applications for vacancies arising at different levels. Could you say a little about it and whether it has your full support? Lady Justice Hale: It was, of course, at the initial appointment level rather than at the question of promotions which is separate. The idea was that one should apply to become a judge. Q191 Chairman: At any time? Any day of the week? Lady Justice Hale: This is what happens at the moment. There are separate competitions. There are some competitions for a vacancy if, for example, there is a vacancy for a mercantile judge in the north east or whatever. However, mostly there is a general competition announced for judges at a particular level, either part-time or full-time, and applications are invited. One could just as well have a notion that there is a general competition announced for judicial appointments. People apply; they can express a preference for which point they think they are best suited for, but they have put in an application for appointment as a judge. Then the Commission can consider whether it should be looking at this person in this light or that light or the other light. That, in a sense would be much less invidious for the applicant than putting in an application saying they only want to be a district judge, for example. People could be picked out who rather undervalued their qualities and other people might be offered things that they did not so much like the look of. Q192 Keith Vaz: In that famous lecture you gave - which is going to be quoted by everyone I should imagine - you talked of the need for some affirmative action to get rid of these disadvantages. That is quite an important and sweeping statement. What do you mean by "affirmative action"? Lady Justice Hale: I do not mean positive discrimination. Let us be absolutely plain, I do not mean that. I am as firm as everybody else is that we have to maintain a high quality judiciary which scores highly on the important qualities of independence, integrity, intelligence and the like. However, one can achieve a great deal - as Canada has shown - by producing a system which is open to applications in a much greater way than our present system is by encouraging people to apply who might not have thought of applying. For example, I would not have thought of applying - had I had to apply, because I came in before there were any applications for the High Court - unless somebody had asked if I had thought of applying. There must be a lot of ways in which you can encourage non-standard people to consider themselves possible candidates and therefore make the application. Q193 Keith Vaz: It is just the use of the words "affirmative action". Lady Justice Hale: That is affirmative action. Q194 Keith Vaz: If you compare it to the American experience it means something quite different. Affirmative action means that you not just encourage people to apply - which is what everyone wants to do; we are all in favour of diversity, we all love black people and Asian people and we want to see more of them appointed and more women as well - you actually reserve places. You say that this judiciary is simply not acceptable and we must do something about it. Would you go that far? Lady Justice Hale: No, I certainly would not. I would call that positive discrimination. I quoted the provisions in the Canadian charter which I was contrasting. You can do things to redress disadvantage which is actually helping people to qualify and helping them to recognise the qualities they have and making the system better able to recognise the qualities they have got. That is not positive discrimination. Q195 Keith Vaz: You did say you had not applied for a position since you got onto the Law Commission. In terms of your present appointment were you telephoned by the Lord Chancellor and told you were going to go into the House of Lords? How is this done, this great mysterious way of appointment? Did he invite you to tea? How are you told? Lady Justice Hale: I could tell you all sorts of lovely stories. As far as the High Court is concerned - I am not sure whether it still happens - you are invited to see the Lord Chancellor. I was invited to see the Lord Chancellor when I was still a law commissioner and I assumed it was about something to do with law reform. It did not occur to me that it was about a judicial appointment until I got to the Pass Office and when I said I was here to see the Lord Chancellor they said, "Oh, that's about a judicial appoint, isn't it?" Q196 Chairman: So you heard it first from the Pass Office. Lady Justice Hale: Yes. They knew what it was about when I did not. So far as the Court of Appeal is concerned you get a letter from Number 10. Q197 Keith Vaz: Just offering it to you. Lady Justice Hale: It says: "A vacancy will shortly arise and I would like to recommend your name to Her Majesty but before doing so I would like to be satisfied that that would be acceptable to you" or words to that effect. Q198 Keith Vaz: And your most recent appointment? Lady Justice Hale: The same. Out of the blue. Q199 Ross Cranston: Anne Cryer and I attended the lecture that you chaired with the Chief Justice of Canada, Beverley McLachlin. The thing that struck me about what she said - which is a point which you pick up in your lecture - was that it was conscious efforts by government and I do not know whether she said it there or somewhere else but certainly she said that it was very much the efforts of the present Prime Minister, Chretien, when he was Justice Minister 25 years ago. It sort of links in with what Keith Vaz has been asking you. There was a conscious effort there to try to widen the pool and to get more people on the bench and that has been extremely successful. The lesson I draw from that is that political action can actually produce changes. I wonder if you draw the same conclusion. Lady Justice Hale: It was a political commitment, but the action was probably through the Appointment Commission route. It seems to me here that the idea of having a Judicial Appointments Commission with a link to a department which has accountability to Parliament can devise strategies for improving matters. Q200 Ross Cranston: Does that mean that this has to be written into the legislation because otherwise the Judicial Appointments Commission might go off and do whatever? Lady Justice Hale: It seems to me unlikely that it would, but I can see the merits of putting certain aspirations into the remit of the Commission. The Judge's Council has quite a good pair of aspirations: maintaining independence and quality but increasing diversity. Ross Cranston: The evidence so far from the Scottish Appointments Commission is that the appointments that have been made are in exactly the same mould as in the past. Q201 Chairman: I am not sure the report says that. Lady Justice Hale: I cannot comment on whether the experience will be repeated here and I do not know enough about the Scottish system, but one of the features of the Scottish system is how small it is. That is not disrespect, but it is very small. Q202 Ross Cranston: And there have been very few appointments. Lady Justice Hale: We have an enormous system here, that is one of the reasons why the old system will not work because it is so much harder to pick out the right candidates and the best candidates when there are so many possibilities even within the existing pool let alone if it were widened. The other point I would like to try to emphasise is that a Judicial Appointments Commission to my mind should have a very strong element of people who know about how these things are done elsewhere in the recruitment and appointment process. Q203 Ross Cranston: You heard my point earlier that this has not necessarily produced different results in other areas. Lady Justice Hale: I think it could if there is the commitment to doing it. I think it would be a good push in that direction. Dare I say this, we have not, in fact, had any real danger of political bias in appointments in my adult life time in England. There is a risk, it seems to me, of a new system being too much under the control of the existing senior judiciary. If you want diversity you have to have a strong non-judicial element to attack this notion that we all know who the best people are. Chairman: On that very clear statement I want to thank you very warmly and look forward to you coming before us on other matters in the future. |